Academic

Baker on Constitutional Treatment of Family Relationships

By Lawrence Solum

Katharine K. Baker (Illinois Institute of Technology - Chicago-Kent College of Law) has posted Family, the Law, and the Constitution(s) on SSRN.  Here is the abstract:

This article explores the constitutional reasons for and the constitutional implications of the current trend to sever family rights from family status. In the last 30 years, courts and legislatures have increasingly recognized a variety of different family forms by granting relationship rights (domestic partnership privileges, civil union status, visitation rights, de facto parent status) without expanding (much) on the legal definition of either marriage or parenthood. This article explains why this might be so by unpacking the constitutional treatment of family relationship. It argues that when state and federal constitutions recognize a right to family status (marriage or parenthood per se), they are honoring an expressive right to label oneself with a status that has social meaning. Because what gives this expressive right its content is the social meaning of the institution, the scope of one's right to family status is cabined by the social understanding of that status. The article also argues that constitutions protect family relationships for reasons other than just their expressive value, however. It suggests that the rights and obligations of both marriage and parenthood, particularly in their tendency to treat two as one for legal purposes, provide critical sources of identity and autonomy to family members. The current trend to disaggregate family rights from family status suggests that legal actors may be more eager to protect the constitutive benefits that flow from family rights than the expressive benefits that flow from family status. The article argues, however, that the trend to disaggregate family rights from status actually undermines both aspects of the constitutional protection of relationship. First, the proliferation of alternative means of recognizing family relationships may well undermine the social meaning of marriage and parenthood per se and thereby make claims to marital or parental status frivolous. Second, the tendency to grant people the rights of family relationships without necessarily imposing upon them the burdens of family relationship undermines the constitutive nature of legally recognized family relationship and therefore undermines the purpose of constitutional protection. Finally, the more legally varied family-like relationships become, the more necessary it will be for courts to insert themselves inside those relationships in ways that will undermine the privacy and autonomy values that justify treating family relationships as special. Although not primarily about gay marriage, all of the analysis presented here has implications for the same-sex marriage debate.

Full post as published by Legal Theory Blog on March 25, 2008 (boomark / email).